[Cite as State v. King, 2017-Ohio-7731.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsCALLISTA KING 

 Defendant-Appellant 

JUDGES: 

Hon. Patricia A. Delaney, P. J. 

Hon. John W. Wise, J. 

Hon. Craig R. Baldwin, J. 

Case No. 16 CAA 11 0050 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 16 CR I 03 0155 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: September 21, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CAROL HAMILTON O'BRIEN JOEL M. SPITZER 

PROSECUTING ATTORNEY 97 South Liberty Street 

AMELIA BEAN-DEFLUMER Powell, Ohio 43065 

ASSISTANT PROSECUTOR 

140 N. Sandusky Street, 3rd Floor 

Delaware, Ohio 43015 
Delaware County, Case No. 16 CAA 11 0050 2

Wise, J. 

{¶1} Defendant-appellant Callista King appeals her conviction entered in the 

Delaware County Common Pleas Court on one count each of breaking and entering, theft, 

possessing criminal tools and criminal damaging, following a jury trial. 

{¶2} Plaintiff-Appellee is the State of Ohio. 

STATEMENT OF THE CASE 

{¶3} The relevant facts are as follows: 

{¶4} On or about January 19, 2016, Aspen Ski and Board was broken into. (T. 

at 188-191). The burglary was captured on video and showed two men getting out of a 

vehicle in the Aspen Ski and Board parking lot, throwing an object through the door of the 

business and stealing property from inside. (T. at 147-148). The vehicle was identified as 

belonging to Appellant Callista King. (T. at 149-152). 

{¶5} At trial, testimony was presented that a person matching Appellant's 

description was in the vehicle shortly before the crime was committed. (T. at 470-471). 

Testimony further established that Appellant was the girlfriend of one of the codefendants. (T. at 262). Testimony was also admitted that Appellant stated she was 

present at the scene of the burglary, that she exited her vehicle to shut the trunk, and that 

she observed clothing in her trunk. (T. at 275). Finally, multiple items of clothing still 

bearing Aspen Ski and Board tags were found in her vehicle by police. (T. at 262). 

{¶6} On March 23, 2016, Defendant-Appellant Callista M. King was indicted on 

Count One (1): Breaking and Entering, in violation of R.C. §2911.13(A), a Fifth Degree 

Felony; Count Two (2): Theft, in violation of R.C. §2913.02(A)(1), a Fifth Degree Felony; 

Count Three (3): Possessing Criminal Tools, in violation of R.C. §2923.24(A), a Fifth 
Delaware County, Case No. 16 CAA 11 0050 3

Degree Felony; and Count Four (4): Criminal Damaging, in violation of R.C. 

§2909.06(A)(1), a Second Degree Misdemeanor. Defendant-Appellant was indicted 

along with two other Co-Defendants, Mark E. Basford, Jr. and Jason S. Manley. 

{¶7} Defendant-Appellant King was offered the option of filing a Motion for 

Intervention in Lieu of Conviction but summarily dismissed that offer, electing to proceed 

to trial. 

{¶8} Defendant-Appellant proceeded to a jury trial July 28, 2016. 

{¶9} At trial, the State presented the testimony of Detective Chadwick Sloan, 

Hannah Rice, Gil Harris, Stacey Kapella, and Detective Rusty Yates. Counsel for 

Defendant-Appellant called Jeffrey Mabrey, an employee of Auto Rescue. 

{¶10} The jury trial concluded on August 1, 2016. Following deliberations, the jury 

found Defendant-Appellant guilty on all four counts as charged. 

{¶11} On October 6, 2016, the matter proceeded to sentencing. The trial court 

sentenced Defendant-Appellant to Community Control Sanctions for a period not to 

exceed two (2) years. The trial court imposed a Residential Community Sanction of 30 

days in the Delaware County Jail. 

{¶12} Defendant-Appellant now appeals, assigning the following errors for review: 

ASSIGNMENTS OF ERROR 

{¶13} “I. DEFENDANT-APPELLANT'S CONVICTION WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

{¶14} “II. DEFENDANT-APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL AND A FAIR TRIAL UNDER THE SIXTH AND 
Delaware County, Case No. 16 CAA 11 0050 4

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE 

OHIO CONSTITUTION, ARTICLE I, SECTION 10. 

{¶15} “III. DEFENDANT-APPELLANT WAS DEPRIVED OF HER RIGHTS TO 

DUE PROCESS AND A FAIR TRIAL UNDER THE FEDERAL AND STATE 

CONSTITUTIONS BY THE CUMULATIVE EFFECT OF THE NUMEROUS ERRORS IN 

THIS CASE.” 

I. 

{¶16} In her First Assignment of Eror, Appellant argues that her conviction was 

against the manifest weight and sufficiency of the evidence. We disagree. 

{¶17} In determining whether a verdict is against the manifest weight of the 

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, 

weighs the evidence and all reasonable inferences, considers the credibility of witnesses, 

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and 

created such a manifest miscarriage of justice that the conviction must be reversed and 

a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678 

N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). 

{¶18} An appellate court's function when reviewing the sufficiency of the evidence 

is to determine whether, after viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, 

paragraph two of the syllabus (1991). 

{¶19} Here, Appellant concedes that the evidence established that Aspen Ski and 

Board was broken into and that her two male co-defendants were present at the scene of 
Delaware County, Case No. 16 CAA 11 0050 5

the crime. However, Appellant argues that the evidence failed to establish that she knew 

or should have known that her co-defendants were planning to commit the charged 

offenses. Instead, she claims that the evidence supports her defense that she was either 

asleep or passed out for the duration of the crime. 

{¶20} Upon review, we find that the State presented sufficient evidence that 

Appellant was complicit in aiding and abetting in the offenses charged. The investigating 

detective testified that Appellant admitted to him that she was present in the car at the 

time the offense was being committed, and that she helped close the trunk after the stolen 

goods were placed there. (T. at 275). Testimony was also presented that the property 

stolen from Aspen Ski and Board was found in Appellant’s vehicle. (T. at 262). Further, 

the security video footage reveals that the item used to smash the door was transported 

to the crime scene in Appellant’s vehicle. 

{¶21} The jury was free to accept or reject any and all of the evidence offered by 

the parties and assess the witnesses' credibility. “While the jury may take note of the 

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do 

not render defendant's conviction against the manifest weight or sufficiency of the 

evidence.” State v. McGregor, 5th Dist. Ashland No. 15–COA–023, 2016-Ohio-3082, 

2016 WL 2942992, ¶ 10, citing State v. Craig, 10th Dist. Franklin No. 99AP–739, 2000 

WL 297252 (Mar. 23, 2000). Indeed, the jurors need not believe all of a witness' 

testimony, but may accept only portions of it as true. Id. Our review of the entire record 

reveals no significant inconsistencies or other conflicts in appellee's evidence that would 

demonstrate a lack of credibility of appellee's witnesses. 
Delaware County, Case No. 16 CAA 11 0050 6

{¶22} Based upon the evidence presented at trial, Appellant’s convictions were 

not against the manifest weight nor based upon insufficient evidence. 

{¶23} Appellant’s First Assignment of Error is overruled. 

II. 

{¶24} In her Second Assignment of Error, Appellant claims that she was denied 

the effective assistance of counsel. We disagree. 

{¶25} To succeed on a claim of ineffectiveness, a defendant must satisfy a twoprong test. Initially, a defendant must show that trial counsel acted incompetently. See, 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, 

“a court must indulge a strong presumption that counsel's conduct falls within the wide 

range of reasonable professional assistance; that is, the defendant must overcome the 

presumption that, under the circumstances, the challenged action ‘might be considered 

sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 

158 (1955). 

{¶26} “There are countless ways to provide effective assistance in any given case. 

Even the best criminal defense attorneys would not defend a particular client in the same 

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the 

wide range of professionally competent assistance.” Id. at 690. 

{¶27} Even if a defendant shows that counsel was incompetent, the defendant 

must then satisfy the second prong of the Strickland test. Under this “actual prejudice” 

prong, the defendant must show that “there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. 
Delaware County, Case No. 16 CAA 11 0050 7

{¶28} Here, Appellant first argues that her counsel was ineffective in failing to 

raise a Crim.R. 29 motion for acquittal at the close of the State’s case. 

{¶29} As we have resolved Appellant's contention her conviction was not 

supported by sufficient evidence and against the manifest weight of the evidence; 

Appellant cannot demonstrate the outcome of the proceeding would have been different 

had her counsel made a motion for acquittal. 

{¶30} Appellant also argues that her counsel was ineffective in failing to request 

that the trial court sever her trial from the trial of her co-defendants. However, Appellant 

has failed to present any argument in support of such a motion or any supporting 

argument or evidence regarding the reasonable probability of a different outcome as a 

result of a separate trial. 

{¶31} Ultimately we find no reasonable probability the outcome of the trial would 

have been different had such motions been raised. See, State v. Graber, 5th Dist. No. 

2002CA00014, 2003–Ohio–137, ¶154, appeal not allowed, 101 Ohio St.3d 1466, 2004–

Ohio–819, 804 N.E.2d 40. 

{¶32} Appellant’s Second Assignment of Error is overruled. 

III. 

{¶33} In her Third and final Assignment of Error, Appellant argues that the 

cumulative effect of the errors in this case deprived her of a fair trial, warranting reversal 

of her convictions. We disagree. 

{¶34} Based upon our analysis and disposition of the First and Second Assigned 

Errors, we overrule Appellant’s Third Assignment of Error. 
Delaware County, Case No. 16 CAA 11 0050 8

{¶35} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Delaware County, Ohio, is affirmed. 

By: Wise, J. 

Delaney, P. J., and 

Baldwin, J., concur. 

 

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